Karnataka High Court
Sri. Praveena vs Shekarappa on 1 September, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.143/2017 (PAR)
BETWEEN:
1. SRI PRAVEENA
S/O. MAHESWARAPPA,
NOW AGED 33 YEARS,
RESIDENT OF BANURU VILLAGE
SHIVANI HOBLI, TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT-577549.
... APPELLANT
(BY SRI RAJA SUBRAHMANYA BHAT, ADVOCATE)
AND:
1. SHEKARAPPA
S/O. HALAGAPPA,
AGE: MAJOR,
AGRICULTURIST,
2. MAHESHWARAPPA
S/O. HALAGAPPA,
AGE: MAJOR,
AGRICULTURIST,
BOTH ARE R/O. BANOOR VILLAGE,
SHIVANI HOBLI,
TARIKERE TALUK-577 549.
3. JAYAMMA
W/O. SIDDARAMAPPA,
2
AGED ABOUT 50 YEARS,
R/O BANDRE VILLAGE,
SHIVANI HOBLI,
TARIKERE TALUK-577 549.
4. SRI KARIBASAPPA
S/O. SHEKARAPPA,
AGED ABOUT 30 YEARS,
AGRICULTURIST,
R/O. BANOOR VILLAGE,
SHIVANI HOBLI,
TARIKERE TALUK-577 549.
... RESPONDENTS
(BY SRI V. JAVAHAR BABU, ADVOCATE FOR R1 TO R4)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DTD: 27.09.2016
PASSED IN R.A.NO.69/2013 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU, PARTLY
ALLOWING THE APPEAL AND FILED AGAINST THE JUDGEMENT
AND DECREE DTD: 17.04.2013 PASSED IN O.S.NO.56/2002 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND PRL. JMFC.,
TARIKERE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.08.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant-plaintiff and learned counsel for the respondents-defendants. 3
2. The factual matrix of the case of the appellant- plaintiff before the Trial Court is that defendant No.1 and 2 are sons and defendant No.4 is the daughter of one Halagappa. That the defendant No.3 is the wife of said Halagappa. The defendant No.5 is the son of the defendant No.1. That the plaintiff is the son of defendant No.2 and one Smt. Sarojamma. The defendant No.2 has married Sarojamma in the year 1990 as per Hindu rites and customs. After five years of the marriage, the defendant No.2 has started to ill treat his wife Sarojamma and thereafter, deserted Sarojamma and the plaintiff and failed to provide any maintenance for their livelihood. It is also the case of the plaintiff that himself and defendants have constituted Hindu Undivided Family and suit schedule properties are the ancestral joint family properties. That the defendant No.1 is the kartha of the joint family. It is further contended that the plaintiff being one of the coparcener is entitled for half share in the share of the defendant No.2 in the ancestral joint family properties and he is in constructive possession of the suit schedule properties along with the defendants. It is also contended that the defendants have intentionally created a 4 registered partition deed dated 03.09.2002 and a registered Will dated 05.10.2002 with an intention to deprive his legitimate share in the suit schedule properties. Hence, the said partition deed and Will is not binding on him.
3. It is the further case of the plaintiff that the defendants are making attempts to alienate the suit schedule properties with an intention to deprive his share in the suit schedule properties and also misused the income of the schedule properties. Hence, filed the suit for the relief of partition. The plaintiff has also sought for declaration to the effect that registered partition deed dated 03.09.2002 and registered Will dated 05.10.2002 is not binding on his share and further sought for an order of injunction against the defendants. Initially, the suit was filed only against the defendant Nos.1 and 2. After appearance of the defendant Nos.1 and 2, after filing of the written statement by the defendant Nos.1 and 2, the plaintiff has got the plaint amended and included the defendant Nos.3 to 5 as the parties to the suit.
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4. In response to the suit summons, the defendant Nos.1 to 5 appeared before the Court. The defendant Nos.1 and 2 have filed their joint written statement. The defendant No.5 has filed his separate written statement which was adopted by the defendant No.4. The defendant No.3 has not filed any written statement. The defendant Nos.1 and 2 in their written statement have admitted the relationship between the plaintiff and the defendants. The defendant Nos.1 and 2 have also admitted the fact that, except item Nos.1, 2 and 7 of the suit schedule properties, remaining suit schedule properties are ancestral properties belonging to the plaintiff and the defendants. The defendant Nos.1 and 2 contend that item Nos.1, 2 and 7 of the suit schedule properties belong to the defendant No.3, who is the mother of the defendant Nos.1, 2 and 4, grand-mother of the plaintiff and defendant No.5. It is contended that item Nos.1, 2 and 7 are the properties acquired by the defendant No.3 from her father Thimmanna and these properties are self-acquired and absolute properties of the defendant No.3, over which the plaintiff is having no right to claim partition.
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5. It is further contended that defendant No.3 has divided item Nos.1, 2 and 7 of the suit schedule properties between herself and her two sons, who are the defendant Nos.1 and 2 in a oral partition and item Nos.1 and 2 of the suit schedule properties were allotted to the share of the defendant Nos.1 and 2 and item No.7 of the suit schedule properties was allotted to the share of the defendant No.3. It is also contended that under a registered partition deed dated 03.09.2002, the defendant Nos.1 and 2 have divided the properties allotted by the defendant No.3 in their favour, wherein the item No.1 of the schedule property was allotted to the share of the defendant No.1 and item No.2 of the schedule property was allotted to the share of the defendant No.2. It is also the contention that defendant No.3, during her life time, has executed a registered Will dated 05.10.2002 and bequeathed the item No.7 of the schedule property in favour of his daughter the defendant No.4 and his grand-son defendant No.5. The defendant Nos.1 and 2 have further contended that item Nos.1, 2 and 7 of the suit schedule properties which have become the absolute properties of the defendant Nos.1, 2, 4 and 5, the plaintiff is having no 7 right to claim share in those properties. The defendant Nos.1 and 2 in their written statement further contended that in the suit schedule properties, except the item Nos.1, 2 and 7, the defendant Nos.1, 2 and 4 are having 1/3rd share equally and the plaintiff is entitled for his share only in the 1/3rd share of the defendant No.2.
6. The defendant No.5 has filed a separate written statement, wherein he has admitted the relationship between the parties to the suit but, he has denied the averments made in the plaint that the suit schedule properties are the ancestral joint family properties. The defendant No.5 further contended that item No.7 of the suit schedule properties is the ancestral joint family property belonging to the plaintiff and the defendants. It is further contended that item No.7 of the suit schedule properties is the absolute property of his grand-mother defendant No.3, who was the owner in possession of the same. It is also contended that the defendant No.3 during her life time has executed a registered Will dated 05.10.2002 by bequeathing item No.7 of the suit schedule properties in favour of her 8 daughter defendant No.4 and her grand-son defendant No.5, since defendant Nos.4 and 5 looked after the defendant No.3 in her old age. The defendant No.3 passed away on 29.09.2007 itself and defendant No.4 has become owner in possession of the item No.7 of the suit schedule properties which has become her self-acquired property and the plaintiff is not having any right.
7. The suit was earlier decreed on 04.02.2010 and against the same, an appeal was filed in R.A.No.148/2010 and the same was allowed and set aside the judgment and remanded the matter with a direction to frame appropriate issues in the suit and after the remand, the suit was partly decreed holding that the plaintiff is entitled to 1/6th share in item Nos.3 to 6 of suit schedule properties and rejected the claim in respect of item Nos.1, 2 and 7 of the suit schedule properties and the same is challenged in R.A.No.69/2013 and the same was dismissed. Hence, the second appeal is filed before this Court.
8. The main contention of the learned counsel for the appellant-plaintiff before this Court is that both the judgments of the Trial Court and the First Appellate Court is illegal, invalid and 9 contrary to law and evidence. The Trial Court and the First Appellate Court have failed to appreciate the facts and law in deciding the validity of the registered partition and the Will of defendant No.3. It is also contended that the Trial Court and the First Appellate Court have failed to examine the validity of the Will and its due execution, though there is sufficient evidence to disprove the alleged Will which is marked as Ex.D17 and the Will is not duly proved. It is further contended that the Trial Court and the First Appellate Court have gone beyond the documentary evidence Ex.D8, wherein it is specifically stated that the property is a joint family property. The appellant has also filed an application under Order 41, Rule 27 of CPC and the same was rejected.
9. The counsel also would vehemently contend that this Court has framed substantial questions of law taking into note of the fact that the Trial Court and the First Appellate Court have failed to consider both oral and documentary evidence placed on record in a proper perspective. The substantial questions of law framed by this Court reads as hereunder:
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"(a) Whether the respondents have established that suit item Nos.1, 2 and 7 properties were the absolute properties of the deceased defendant No.3 and therefore, by common consensus amongst them, the respondent Nos.1, 2 and the deceased defendant No.3 have dealt with these properties with the deceased defendant No.3 executing the registered Will dated 05.10.2002 bequeathing suit item No.7?
(b) Whether the Courts below have decided on the aforesaid transfers in favour of the respondents in respect of these properties on the basis of the evidence on record, and whether any interference is called for with the denial of the share to the appellant/plaintiff in these properties on these grounds?"
10. The learned counsel for the appellant-plaintiff in his argument would vehemently contend that this appeal is filed challenging the rejection of claim in respect of item Nos.1, 2 and 7 of the suit schedule properties. The counsel would vehemently contend that in the cross-examination of D.W.1, he categorically admitted that Will was prepared on the advice of the advocate and not on the instructions of the executant. The counsel also 11 would vehemently contend that, when the share was claimed, the alleged Will came into existence immediately with an intention to defraud the appellant-plaintiff. The counsel also brought to notice of this Court admission elicited from the mouth of the witnesses D.Ws.2 and 5. The counsel also would vehemently contend that, even though the properties came to the defendant No.3 through her father and the same was blended with the other properties, the Will executed by her is not proved in accordance with law and once the Will goes, the plaintiff is also entitled for a share in the said properties.
11. The learned counsel for the appellant-plaintiff, in support of his argument, he relied upon the judgment in THAMMA VENKATA SUBBAMMA (DEAD) BY L.R. VS.
THAMMA RATTAMMA AND OTHERS reported in AIR 1987 SC 1775 and brought to notice of this Court Para Nos.20 and 21 and contend that a coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them and such renunciation enures for the benefit of all other coparceners and 12 not for sole benefit of the coparcener or coparceners in whose favour the renunciation is made.
12. The counsel also relied upon the judgment in G.NARAYANA RAJU (DEAD) BY HIS LEGAL REPRESENTATIVE VS. G. CHAMARAJU AND OTHERS reported in AIR 1968 SC 1276 and brought to notice of this Court Para No.6, wherein the Apex Court has discussed with regard to throwing the business into the common stock or in blending the earnings of the business with the joint family income. The counsel referring this judgment would contend that in the case on hand also, the defendant No.3 has blended the property which she had derived from her father along with other family properties.
13. The counsel also relied upon the judgment in MALLESAPPA BANDEPPA DESAI AND ANR. VS. DESAI MALLAPPA ALIAS MALLESAPPA AND ANR. reported in AIR 1961 SC 1268 with regard to applicability of doctrine of blending Woman's property with joint family property and doctrine is also explained that, it cannot be applied to case of 13 Hindu female inheriting immovable property from her father as limited owner. The counsel also brought to notice of this Court Para Nos.6 and 7, wherein the Apex Court observed that the claim of the appellant's in respect of this property is based on the principle of blending or throwing into the common stock which is recognized by Hindu law. The counsel further brought to notice of this Court Para No.11, wherein also an observation is made that there can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property.
14 The counsel also relied upon the judgment in GOLI ESWARIAH VS. COMMISSIONER OF GIFT TAX, A.P. reported in AIR 1970 SC 1722, wherein observation is made with regard to self-acquired property and Doctrine of throwing self acquired property into a common hotchpot.
15. The learned counsel for the appellant-plaintiff, referring these judgments would vehemently contend that even though the property devolved upon the defendant No.3 from her father but, she has blended the properties into common hotchpot 14 and as a result, once the properties have been blended with the properties of the family, the same should devolve upon the other coparceners and the appellant is also a coparcener of the family. Hence, the appellant is also entitled for a share in item Nos.1, 2 and 7 of the suit schedule properties.
16. Per contra, learned counsel for the respondents- defendant Nos.1 to 4 would vehemently contend that though the claim is that all the properties are ancestral joint family properties, but the appellant-plaintiff has not proved that item Nos.1, 2 and 7 are ancestral joint family properties. The counsel also would vehemently contend that in the pleadings i.e., in the plaint, it is nowhere pleaded that item Nos.1, 2 and 7 are the ancestral joint family properties and the Trial Court, while answering issue No.2, rightly answered the same that item Nos.1, 2 and 7 are not an ancestral joint family properties. The counsel also would vehemently contend that both the Courts have given concurrent finding that the said items of the properties are absolute properties of defendant No.3 and the same was acquired through her father and the same is also 15 admitted by the plaintiff in his evidence. Hence, no grounds are made out to invoke Section 100 of CPC to reverse the findings of the Trial Court as well as the First Appellate Court.
17. The counsel also brought to notice of this Court Para Nos.19 and 20 of the judgment of the Trial Court, wherein the Trial Court has discussed that item Nos.1, 2 and 7 of the suit schedule properties are not the ancestral properties and those properties belong to defendant No.3 and the same came to her through her father and hence, the question that the appellant is also entitled for a share in the said properties does not arise. The counsel also would vehemently contend that the averments of the plaint in Para No.4 is not clear and it is only a cryptic averment and the plaintiff has not stated anything about the fact that item Nos.1, 2 and 7 of the suit schedule properties are ancestral properties. Hence, it does not require any interference.
18. Having perused the grounds urged in the appeal and the contentions urged by the learned counsel for the appellant- plaintiff during the course of his argument and also the principles laid down in the judgments referred (supra), the judgments 16 relied upon by the learned counsel for the appellant is clear with regard to blending of the self-acquired property to a common hotchpot is also for the benefit of the family. However, the very contention of the respondents-defendants is that the said properties are exclusive properties of defendant No.3. This Court also, while admitting the second appeal framed the substantial questions of law which are extracted hereinabove.
19. Having perused the substantial questions of law framed by this Court and considering the material available on record, it is not in dispute that the plaintiff is the son of the defendant No.2 and one Smt. Sarojamma. The pleading is also very clear that the marriage between defendant No.2 and Sarojamma took place in the year 1990 as per Hindu rites and customs. It is also not in dispute that they lived together for sometime and thereafter, differences have arisen between them and the wife and son have separated from defendant No.2. It is also important to note that there is no dispute with regard to other properties are concerned and the only dispute is in respect of item Nos.1, 2 and 7 of the suit schedule properties. It is the 17 contention of the respondents-defendants that those properties are not ancestral properties of plaintiff and the defendants but, they are the absolute properties of defendant No.3-Thimmamma which she has inherited from her father Thimmanna.
20. The crux of the issue is whether item Nos.1, 2 and 7 of the suit schedule properties are the ancestral joint family properties. On perusal of the material available on record, it is seen that no documents are produced before the Court to evidence the fact that those properties are ancestral joint family properties and the same belongs to the plaintiff and the defendants. The RTC extracts which are produced as Exs.P1 and P2 discloses that item Nos.1 and 2 of the suit schedule properties stands in the name of defendant Nos.1 and 2, pursuant to the partition that took place between the defendant Nos.1 to 3. On perusal of Ex.P7-RTC Extract for the year 2001- 2002 in respect of item No.7 of the suit schedule properties, the same discloses that khatha of the said land stands in the name of defendant No.3-Thimmamma. It is also an admitted fact that those properties came to defendant No.3-Thimmamma from her 18 father Thimmanna and those properties are not the joint family properties of the plaintiff and defendants. The said items of the properties are the absolute properties of defendant No.3 and the same is also admitted in the cross-examination of P.W.1. In the cross-examination of P.W.1, she categorically admits that her mother-in-law's father name is Thimmanna and not disputes the relationship between the parties and she categorically admits that some of the properties are standing in the name of her mother-in-law Thimmamma and also categorically admits that the said properties came to her through her father. When such admission is given by P.W.1 in the cross-examination that those properties which are standing in the name of her mother came to her through her father, those properties becomes the absolute properties of said Thimmamma.
21. The other witness i.e., P.W.2, who is the plaintiff also in the cross-examination categorically admits that suit schedule properties are his grand-mother's properties. When such suggestion was made that during her life time, she got divided the properties, P.W.2 says that he is not aware of the same. He 19 also categorically admits that, in respect of the remaining properties, defendant No.3 has executed the Will in favour of her daughter and her grand-son and also admits that both of them have not questioned the said Will before any Court.
22. The issue involved between the parties is with regard to item Nos.1, 2 and 7 of the suit schedule properties and those properties stands in the name of defendant No.3 and when there is a clear admission on the part of the witnesses P.Ws.1 and 2 that those properties are standing in the name of defendant No.3 and the properties came to her through her father, the same becomes the self-acquired properties of defendant No.3. It is also not in dispute that certain properties are partitioned during her life time and executed a Will and the said Will is also admitted by P.W.2 i.e., the plaintiff, the properties are the absolute properties of the said defendant No.3. In the plaint also, it is only stated that the suit schedule properties belongs to the plaintiff and the defendants and contend that all the suit schedule properties are the ancestral properties of both the parties. Hence, the plaintiff claimed half share of defendant 20 No.2. As rightly contended by the learned counsel for the respondents, in the plaint, the plaintiff has not stated anything as to which of the properties are the ancestral properties, except a cryptic averment made in Para No.4 of the plaint. When there is a categorical admission in the cross-examination of P.Ws.1 and 2 that those properties belongs to defendant No.3 and she has derived the same from her father, the same becomes the absolute property of defendant No.3.
23. The Trial Court also having given anxious consideration to the material available on record, while answering the issues, particularly issue No.3 pertaining to item Nos.1, 2 and 7 of the suit schedule properties since, the defendants categorically contend that those properties are absolute properties of defendant No.3, taken note of both oral and documentary evidence placed on record and in Para Nos.19 and 20, as contended by the learned counsel for the respondents, in detail discussed the same and also taken note of both oral and documentary evidence placed on record i.e., the revenue documents and rightly comes to the conclusion that 21 item Nos.1, 2 and 7 of the suit schedule properties are not the ancestral properties of the plaintiff and the defendants but, they are the absolute properties of defendant No.3. It is also important to note that in respect of item Nos.1 and 2 of the suit schedule properties, already there was a partition and in respect of item No.7 of the suit schedule properties is concerned, the defendant No.3 herself has executed a Will in favour of her daughter and grand-son.
24. The very contention of the learned counsel for the appellant-plaintiff that the documents of Exs.D8 and D17 are not properly appreciated cannot be accepted. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, considered the material available on record, particularly item Nos.1, 2 and 7 is concerned since, the judgment and decree of the Trial Court was challenged in respect of item Nos.1, 2 and 7 of the suit schedule properties and in Para No.20, the First Appellate Court has taken note of the admission given by P.W.1, wherein in the cross-examination she herself has admitted that the partition and Will are relating to 22 absolute properties of defendant No.3-Thimmamma and not relating to ancestral and joint family properties. The First Appellate Court also observed that defendant No.3-Thimmamma has disposed her properties in favour of defendant Nos.1, 2, 4 and 5 and rightly comes to the conclusion that item Nos.1, 2 and 7 of the suit schedule properties are the absolute properties of defendant No.3.
25. It is also important to note that, when the properties are 'sthridhana properties' of defendant No.3, which she has derived from her father, she has got absolute right under Section 14 of the Hindu Succession Act and during her life time, she has disposed of those properties by giving share in respect of item Nos.1 and 2 and bequeathed item No.7 of the suit schedule properties in favour of defendant Nos.4 and 5. Hence, I do not find any error committed by the Trial Court and the First Appellate Court in considering the material available on record. Hence, I answer the substantial question of law (a) that the respondents have established that item Nos.1, 2 and 7 of the suit schedule properties were the absolute properties of 23 defendant No.3 and those properties were dealt with by the defendant No.3 by giving item Nos.1 and 2 in favour of defendant Nos.1 and 2 and executing a Will in respect of item No.7 in favour of defendant Nos.4 and 5.
26. With regard to substantial question of law (b) is concerned i.e., whether both the Courts have decided the aforesaid transfer in favour of the respondents in respect of these properties on the basis of the evidence and whether any interference is called for with the denial of the share to the appellant-plaintiff in these properties, the judgment of the Trial Court and the First Appellate Court do not suffer from any illegality and perversity and both the Courts have given anxious consideration to the both oral and documentary evidence placed on record. Hence, I answer substantial questions of law framed by this accordingly. Therefore, I do not find any merit in the second appeal to reverse the findings of the Trial Court as well as the First Appellate Court in respect of disputed item Nos.1, 2 and 7 of the suit schedule properties since, the same are not ancestral properties and those properties are the absolute 24 properties of defendant No.3 and during her life time, she has disposed of the said properties by giving share and also executing a Will in respect of item No.7 of the suit schedule properties and I do not find any illegality or perversity in the findings of the Trial Court and the First Appellate Court.
27. No doubt, the learned counsel appearing for the appellant-plaintiff relied upon several judgments with regard to the blending is concerned, no material is placed before the Court by the appellant with regard to the blending of the properties is concerned and instead, the defendant No.3 during her life time has disposed of the properties by giving share in respect of item Nos.1 and 2 in favour of defendant Nos.1 and 2 and executed a Will bequeathing item No.7 in favour of defendant Nos.4 and 5. Hence, the very judgments which have been relied upon by the learned counsel for the appellant-plaintiff are not applicable to the facts of the case on hand and the very contention that documents of Exs.D8 and D17 are not proved also cannot be accepted.
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28. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE ST